Citation Nr: 1503495
Decision Date: 01/26/15 Archive Date: 02/09/15
DOCKET NO. 09-43 396 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia
THE ISSUES
1. Entitlement to service connection for a disability manifested by chest pain.
2. Entitlement to service connection for a disability manifested by numbness of the right foot.
3. Entitlement to service connection for a disability manifested by right shoulder pain.
4. Entitlement to service connection for a disability manifested by left shoulder pain.
5. Entitlement to service connection for a disability manifested by cold sweats.
6. Entitlement to service connection for a disability manifested by left knee pain.
7. Entitlement to service connection for a disability manifested by ear pain.
8. Entitlement to service connection for pseudofolliculitis barbae.
9. Entitlement to service connection for tinnitus.
10. Entitlement to service connection for residuals of cyst on the back.
11. Entitlement to service connection for bilateral hearing loss.
12. Entitlement to service connection for patent foramen ovale, claimed as a heart condition/ hole in the heart.
13. Entitlement to service connection for inguinal hernia.
14. Entitlement to service connection for bilateral vision loss.
15. Entitlement to service connection for a low back disability.
16. Entitlement to service connection for a disability manifested by dizziness.
REPRESENTATION
Appellant represented by: Georgia Department of Veterans Services
ATTORNEY FOR THE BOARD
Sarah Richmond, Counsel
INTRODUCTION
The Veteran had active military service from August 1979 to August 1992 and July 1998 to August 2006.
This matter comes to the Board of Veterans' Appeals (Board) from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran was scheduled for a Travel Board hearing in August 2014, but failed to report to the hearing. While the hearing notice letter was sent to a previous address, recent correspondence to the Veteran's current address of record also was returned as undeliverable. It does not appear that the Veteran has kept VA apprised of his whereabouts, frustrating any efforts VA has made to assist the Veteran in his claim.
FINDINGS OF FACT
1. The Veteran failed to report for April 2012 examinations scheduled in conjunction with his service connection claims for disabilities manifested by chest pain, numbness of the right foot, right shoulder pain, cold sweats, left knee pain, ear pain, dizziness, and left shoulder pain, as well as pseudofolliculitis barbae, tinnitus, bilateral hearing loss, residuals of cyst on the back, patent foramen ovale, claimed as a heart condition/ hole in the heart, inguinal hernia, bilateral vision loss, and a low back disability; nor has he presented good cause for his failure to report for the examinations.
2. The evidence of record is insufficient to establish service connection for disabilities manifested by chest pain, numbness of the right foot, right shoulder pain, cold sweats, dizziness, left knee pain, ear pain, and left shoulder pain, as well as pseudofolliculitis barbae, tinnitus, bilateral hearing loss, residuals of cyst on the back, patent foramen ovale, claimed as a heart condition/ hole in the heart, inguinal hernia, bilateral vision loss, and/ or a low back disability.
CONCLUSIONS OF LAW
1. A disability manifested by chest pain was not incurred or aggravated in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.655(b) (2014).
2. A disability manifested by numbness of the right foot was not incurred or aggravated in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.655(b) (2014).
3. A disability manifested by right shoulder pain was not incurred or aggravated in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.655(b) (2014).
4. A disability manifested by left shoulder pain was not incurred or aggravated in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.655(b) (2014).
5. A disability manifested by cold sweats was not incurred or aggravated in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.655(b) (2014).
6. A disability manifested by left knee pain was not incurred or aggravated in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.655(b) (2014).
7. A disability manifested by ear pain was not incurred or aggravated in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.655(b) (2014).
8. Pseudofolliculitis barbae was not incurred or aggravated in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.655(b) (2014).
9. Tinnitus was not incurred or aggravated in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.655(b) (2014).
10. Bilateral hearing loss was not incurred or aggravated in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.655(b) (2014).
11. Residuals of cyst on the back were not incurred or aggravated in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.655(b) (2014).
12. Patent foramen ovale, claimed as heart condition, was not incurred or aggravated in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.655(b) (2014).
13. Inguinal hernia was not incurred or aggravated in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.655(b) (2014).
14. Bilateral vision loss was not incurred or aggravated in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.655(b) (2014).
15. A low back disability was not incurred or aggravated in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.655(b) (2014).
16. A disability manifested by dizziness was not incurred or aggravated in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.655(b) (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duties to Notify and Assist
As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a).
Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).
In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.
The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). An RO letter dated in December 2007 informed the Veteran of all of the elements required by 38 C.F.R. § 3.159(b), as stated above. The December 2007 letter also provided the Veteran with information on how VA determines and assigns effective dates.
Regarding the duty to assist, the RO has obtained the Veteran's service treatment records and private treatment records, and also attempted to provide the Veteran VA examinations in July 2009 and April 2012 to assess the etiology of the Veteran's claimed disabilities. 38 C.F.R. § 3.159(c)(4).
After receiving a statement from the Veteran that he had moved and never received the notice for the July 2009 VA examination, the Veteran was scheduled for additional examinations in April 2012 with a note that the examinations were scheduled with notice sent to the most recent address of record. However, the Veteran did not report for these examinations either, nor did he provide any reason for his failure to report. Under 38 C.F.R. § 3.655(a), when entitlement to a benefit cannot be established without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken in accordance with 38 C.F.R. § 3.655(b) or (c) as appropriate. Title 38 C.F.R. § 3.655(b) applies to original or reopened claims or claims for increase, while 38 C.F.R. § 3.655(c) applies to running awards, when the issue is continuing entitlement. More specifically, when a claimant fails to report for a medical examination scheduled in conjunction with an original compensation claim, without good cause, the claim shall be rated based on the evidence of record. See 38 C.F.R. § 3.655(b). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, or death of an immediate family member. See 38 C.F.R. § 3.655(a) . The Court has held that "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).
Although the record does not contain a current VA examination to address the service connection claims for disabilities manifested by chest pain, numbness of the right foot, right shoulder pain, cold sweats, left knee pain, dizziness, ear pain, and left shoulder pain, as well as pseudofolliculitis barbae, tinnitus, bilateral hearing loss, residuals of cyst on the back, patent foramen ovale, claimed as a heart condition/ hole in the heart, inguinal hernia, bilateral vision loss, a low back disability, the Board will proceed with a decision.
The duty to assist has therefore been satisfied and there is no reasonable possibility that any further assistance to the appellant by VA would be capable of substantiating his claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the appellant in adjudicating this appeal.
II. Service Connection
Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Service connection will be presumed for certain chronic diseases, including a psychosis, if manifest to a compensable degree within one year after discharge from service. See 38 C.F.R. §§ 3.307, 3.309 (2014).
In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77.
The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).
As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the veteran, and the veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996).
The Veteran seeks service connection for disabilities manifested by chest pain, numbness of the right foot, right shoulder pain, dizziness, cold sweats, left knee pain, ear pain, and left shoulder pain, as well as pseudofolliculitis barbae, tinnitus, bilateral hearing loss, residuals of cyst on the back, patent foramen ovale, claimed as a heart condition/ hole in the heart, inguinal hernia, bilateral vision loss, a low back disability. He has been scheduled for two sets of examinations for his claimed disabilities in July 2009 and April 2012 that have been cancelled for his failure to attend, based, in part, on the difficulty in determining his proper address. At the time of his original claim in 2007 the Veteran lived in Fairburn, GA. In October 2009, however, it was discovered that the Veteran had moved to an address in Warner Robins, GA, after the Veteran's Statement of the Case was returned with a notice that his time for forwarding mail had expired. On his VA Form 9 received in November 2009, the Veteran indicated that he lived in Warner Robins, GA and that he never received the prior examination notice letter that was sent in July 2009. He also requested a hearing on his VA Form 9. As noted above, the Veteran did not report for the hearing that was scheduled in August 2014, though his hearing notice letter was sent to his address in Fairburn, GA. Recent correspondence sent to the Veteran in October 2014 to his address in Warner Robins, GA, however, also was returned as undeliverable.
In April 2012 the RO again attempted at scheduling examinations. There is a note that these examinations were cancelled because the Veteran failed to report to the examinations; one examiner provided an opinion concerning the dizziness and ear pain claim, but noted that the Veteran was not present for the examination. The address noted on the scheduling sheet for the examinations notes the Veteran's latest address of record in Warner Robins, GA was used.
The service treatment records document treatment for some of the Veteran's claimed disabilities. For instance, the Veteran underwent surgery to treat a left inguinal hernia in August 2003; he was put on limited profile for moderate to severe pseudofolliculitis barbae in 1989; he had an excision of a cyst on the back in January 1996, which was noted as being infected in 1991, and recurring in January and October 2005; he had complaints of left shoulder pain after hitting it against the wall in November 1991; complaints of back pain in October 2000 and November 2000; complaints of eye trouble in March 1992 and 2002; and he had complaints of chest wall pain in 1985 and 1989. He also was noted as being exposed to hazardous noise levels in April 2002. In addition on his March 2006 separation physical, the Veteran noted numerous problems including complaints of hearing loss, shoulder pain, left knee pain, dizziness, chest pain, ear pain, cold sweats, back pain, and numbness in the right foot. On physical examination he was noted as having myopia and that he wore glasses, complaints of hearing loss but still in the normal range, bilateral shoulder pain intermittently, chest pain, hernia repair, intermittent dizziness, numbness in the right foot, left knee pain, pseudofolliculitis, low back pain, and right foot pain due to plantar fasciitis; he had a cyst removed from his back with a large healed scar; and he was treated with drops in 2001 for right ear otalgia.
However, there is no post-service medical evidence to determine whether he continues to suffer from the claimed disabilities, and the Veteran has not cooperated with VA's efforts to schedule him for VA examinations to address the etiology of any of the claimed disabilities, as noted above.
The Veteran is competent to report his symptoms associated with his claimed disabilities, however the etiology of the disabilities on appeal are not readily apparent to a lay person and there is no evidence that he has the medical expertise to make this determination. He is not shown to be competent to determine the etiology of the claimed disabilities. Even medical experts rely on diagnostic tools to identify pertinent pathology. With respect to the complaints of ear pain and dizziness, a VA medical opinion in April 2012 notes that there is no evidence in the service treatment records to substantiate the Veteran's complaints. The examiner noted that there was no specific information documenting any dizziness episodes in the military and that other than an entry in 2001 noting that the Veteran was treated with eardrops for otalgia, and a 2006 entry in preparation for a compensation and pension examination noting vertigo, there was nothing to substantiate vertigo or ear pain that the examiner could see in the record. Thus, in this case, the Board finds that there is no competent medical evidence of record to indicate that the Veteran presently has any of the claimed disabilities on appeal.
For the reasons discussed above, the Board concludes that the Veteran does not meet the criteria for service connection for disabilities manifested by chest pain, numbness of the right foot, dizziness, right shoulder pain, cold sweats, left knee pain, ear pain, and left shoulder pain, as well as pseudofolliculitis barbae, tinnitus, bilateral hearing loss, residuals of cyst on the back, patent foramen ovale, claimed as a heart condition/ hole in the heart, inguinal hernia, bilateral vision loss, and a low back disability. The benefit-of- the-doubt doctrine has been considered; however, as the preponderance of the evidence is against the claim, it is inapplicable in the instant appeal. 38 U.S.C.A § 5107(b); see also Gilbert, supra.
ORDER
Entitlement to service connection for a disability manifested by chest pain is denied.
Entitlement to service connection for a disability manifested by numbness of the right foot is denied.
Entitlement to service connection for a disability manifested by right shoulder pain is denied.
Entitlement to service connection for a disability manifested by left shoulder pain is denied.
Entitlement to service connection for a disability manifested by cold sweats is denied.
Entitlement to service connection for a disability manifested by left knee pain is denied.
Entitlement to service connection for a disability manifested by ear pain is denied.
Entitlement to service connection for pseudofolliculitis barbae is denied.
Entitlement to service connection for tinnitus is denied.
Entitlement to service connection for residuals of cyst on the back is denied.
Entitlement to service connection for bilateral hearing loss is denied.
Entitlement to service connection for patent foramen ovale, claimed as a heart condition/ hole in the heart is denied.
Entitlement to service connection for inguinal hernia is denied.
Entitlement to service connection for bilateral vision loss is denied.
Entitlement to service connection for a low back disability is denied.
Entitlement to service connection for a disability manifested by dizziness is denied.
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S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs